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Commerce Clause???

Discussion in 'Legal' started by Thefabulousfink, Jan 19, 2006.

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  1. Thefabulousfink

    Thefabulousfink Member

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    I have heard of the Commerce Clause in relation to the 2A, but never a good explanation of it and how it can limit the 2A. Can some one here please fill me in on the details?:confused:
     
  2. Chipperman

    Chipperman Member

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    Are you referring to the Interstate Commerce?
     
  3. Thefabulousfink

    Thefabulousfink Member

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    I believe that is what it is since it works on a federal level.
     
  4. geekWithA.45

    geekWithA.45 Moderator Emeritus

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    Long story short:

    Congress is under the impression that they have the power to regulate anything they can even vaguely connect to interstate commerce.

    This started in the 40's, when SCOTUS ruled that the feds had the power to regulate a few spare acres some farmer had in his field for his own consumption, because this affected interstate commerce by reducing the market demand for whatever it was that that the farmer provided himself with. Apparently, there is no discernable limit on this power.

    Prior to this, Congress believed that they could only regulate things that they taxed, which is why the 1934 NFA is concocted as a tax scheme. After this ruling, and subsequent expansions, congress merely need not that the thing to be regulated has some tangible relationship to interstate commerce.

    For example, the AWB was cast in such terms.
     
  5. Standing Wolf

    Standing Wolf Member in memoriam

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    Short story even shorter:

    We should fire Congress en masse.
     
  6. BostonGeorge

    BostonGeorge Member

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    In the most basic of terms, it is the explanation Congress uses to pass extra-Constitutional legislation and have it wrongly upheld by the courts.

    What he said.
     
  7. beerslurpy

    beerslurpy member

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    Interstate commerce doesnt override the 2nd amendment, it is just that the 2nd amendment is mostly ignored except to casually dismiss it at the lower levels of the court system.

    Interstate commerce basically provides the false permission for congress to pass nearly every law it has passed since 1942.
     
  8. mzmtg

    mzmtg member

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    The "commerce clause" has been dead for a long time.

    fuggetaboutit
     
  9. publius

    publius Member

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    Thefabulousfink,

    Have a look at the US Constitution, Article 1, Section 8, which lists the powers of the Congress, and while you are looking, think about the many things the federal government does. Try to find the authority to do those things in Article 1, Section 8. It's not easy.

    So where did they find the authority to create the various federal regulatory regimes? In the power to tax, and in the interstate commerce clause. The 1906 Pure Food and Drug Act applied only within the District of Columbia, and to interstate commerce by anyone's definition.

    In 1914, the Harrison Tax Act laid a tax on narcotics. The purpose was not to raise revenue, but to regulate narcotics. This set a precedent which was just cited by Justice Scalia in the Oregon vs Gonzalez (assisted suicide) case:

    The Harrison Act served as a model for the 1934 National Firearms Act, which taxed certain guns. Again the objective was not to raise revenue, but to regulate possession or transfer of those guns.

    In 1941 (or was it 42?), the Supreme Court handed down a decision known as Wickard vs Filburn, in which it decided that a wheat farmer who was a participant in a federal price control scheme could not grow "extra" wheat on his land, beyond his federal allotment, because if all wheat farmers did this, it would create a surplus of wheat, thus defeating Congress' efforts to manage the price of wheat. Defeating those efforts seems a good idea to me, but anyway...

    The gist of the decision was, because it could affect interstate commerce, homegrown wheat for personal consumption was subject to federal regulation.

    Suddenly, the power to tax was no longer really required in order to regulate purely in-state activities. Later narcotics laws were no longer based on the tax power, they were based on the commerce clause, and again gun laws followed the same path. It was all just confirmed all over again this past Summer, with the Raich and Stewart cases.

    Getting back to your original question, a more proper one would be how the 2nd can limit the regulatory power created under the commerce clause. If you ask the Supreme Court that question, their response will be, "The what?"
     
  10. CentralTexas

    CentralTexas Member

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    You left out the word "upon" between fire & Congress!
    ;)
    CT
     
  11. dolanp

    dolanp Member

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    The commerce clause is the chisel that Congress hammers the 9th and 10th amendments away with.
     
  12. Al Norris

    Al Norris Member

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    The argument by those legalists who condone wide and sweeping powers for the federal government is that the Bill of Rights really doesn't change any of the Constitutions articles of power... No mention of any other Article is ever made in the BoR (like some other amendments), therefore no restrictions upon Art. II sec 8 powers are imposed.

    Legalists who adhere to the BoR would argue that any Sec 8 power that interferes with an article in the BoR is superceded by that article, as the BoR were incorporated into the Constitution after said document was ratified.

    In order to get around this statutory construction, the government has almost always argued that because of the Necessary and Proper clause of Sec 8, the government has a compelling interest in the law being challenged. The courts have agreed with this interpretation since Wickard v Filburn (1942).

    Which, for me, begs the question: If Sec 8 powers are modified so as to comply with the BoR's restrictions, then why isn't the Necessary and Proper clause (a part of Sec. 8) also modified?

    What we have instead, and what publius rightfully points out, is a concactination of ever increasing federal reach, via the Commerce Clause. As Justice Thomas points out in his dissent of Raich, there are effectively no limits to that federal reach, as long as Congress continues to use the Commerce Clause and the Court backs them up.
     
  13. Thefabulousfink

    Thefabulousfink Member

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    Thank to everyone!

    This give me a lot to think about how our government is run. It also has further opened my eyes to just how far our country has moved from what the founders intended.

    I've started reading The Federalist Papers and it's been pretty shocking.
    Edit:I don't agree with all the Federalist Papers, but It's interesting to see the thoughts behind many of our founders.
     
  14. publius

    publius Member

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    Madison should have a pretty good idea of what was intended by the words in the Constitution...

     
  15. El Tejon

    El Tejon Member

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    Commerce Clause=Big Hammer of Unlimited Government.:uhoh:
     
  16. Thefabulousfink

    Thefabulousfink Member

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    Exactly, I remember that early in our history we had the problem of individual states raising tarrifs on interstate commerce. I could understand the Gov wanting to stop that, but now they have taken it to extemes.
     
  17. publius

    publius Member

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    James Madison, Federalist 45:

    Doh!
     
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